I would like to give some insight on how I devise my contracts. This will probably be more catered to the photography side in this article, but you can take this and twist this to other areas of the design world. We will be putting together a basic contract for a photo shoot. Now I am making my disclaimer, as I am not a lawyer and I have limited legal knowledge when it comes to offering advice about contracts. I have read books, I have hundreds of copies of different kinds of contracts saved on CDs, and even took a law during my college career. That still does not make me an expert on the subject.
I have pieced together my contracts from numerous sources of information and advice given to me from other individuals. This article will contain everything I usually give to my clients before I start the project. From the description of the assignment with an estimate of the photographer’s fees, terms and conditions, and defined terms.
Assignment Estimate Worksheet
I always include this as the first part of my contracts. This is where you break down your fees, expenses, assignment description, and have areas for the client’s information (name, address, number, etc). Being the easy part of devising the contract I have included a very basic break down of what this could look like below. You can create the layouts in Microsoft word, Photoshop, or Illustrator and export them as .pdf files.
Terms and Conditions
This is the most difficult part of the contract. When it comes down to what saves your ass in the long run, this is the section where you need to be particular about what is typed out and how it is typed out. I am going to list some of the more general terms and conditions (T&Cs). There are numerous T&Cs that need to be applied to different assignments. For instance, there is a big difference when you are putting together a portrait contract and when you are putting together a contract license for merchandising some of your images. I am not going to go through every situation. That is where you can sit down and do some research on your own; so lets begin with some T&Cs that will apply generally to all shoots. These are listed in no particular order and I have italicized and underlined the areas that need to be customized by you.
Retainer and Payment.
A non-refundable Retainer of half of the Agreement price shall be paid to the Photographer by the Client to perform the services specified herein 30 calendar days before the Assignment’s scheduled date. The Retainer shall only be refunded as specified in paragraph 2 and 3. At such time the Photographer has completed the Assignment, the Photographer shall send proof copies of the media as an appropriate medium for the Client to choose quantities and sizes of reproduction in print or other media specified herein. Client shall make choices and notify the Photographer within fourteen (14) calendar days upon receiving proof copies. Photographer shall notify the Client within 30 calendar days of Client having made the choices for delivery of the media. Client shall pay the Photographer the balance due by the reduction of the retainer from the total cost within 21 calendar days. If Client refuses to pay balance in full within 21 calendar days, the Client shall be in default hereunder and shall pay (ENTER PERCENT # HERE) percent interest on the unpaid balance until balance is paid in full. Media produced from the course of this assignment shall not be passed to the Client until payment of the Agreement balance has been paid in full, any interest accrued, and/or late fees.
The Client may cancel this Agreement without penalty, thirty (30) or more calendar days before the scheduled Assignment date and the Photographer will refund the retainer fee in full. If Client cancels this agreement within thirty (30) calendar days of scheduled Assignment date and if the Photographer does not obtain another Assignment for that date, liquidated damages shall be charged in a reasonable amount not to exceed the Retainer.
Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control. Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of Force Majeure; such notice to contain details of the circumstances giving rise to it. In such event of Force Majeure the Photographer will refund Client’s Retainer in full. Causes deemed to be beyond control shall include:
.1 Death or serious injury of illness of a close family member.
.2 Injury to or illness of the Photographer personally.
.3 Acts of God (including fire, flood, earthquake, storm, hurricane, or other natural disasters).
Photographer agrees to devote his full time, attention, and abilities for the duration of the Assignment. Photographer may substitute another photographer in the event of Photographer’s illness or of scheduling conflicts. With the event of a substitution, the Photographer warrants the substituted photographer is a professional.
Client is obtaining media from Photographer for personal use only and shall not reproduce, sell, or authorize other parties to reproduce the media. Written permission shall be required by Client from Photographer to reproduce any of Client’s media that is not directly reproduced from Photographer. In such event Photographer gives permission, Client is required to give credit on or near reproduced media to Photographer. Client shall pay Photographer balance due for services requested herein as specified in paragraph 1. Client may not use or have access to any media in any medium in respect of which payment has not been made to Photographer.
Photographer shall own the copyright to the media in any medium produced from this Assignment and shall have the exclusive rights to all media unless specified herein. Photographer reserves the right to reproduce the media for Photographer’s portfolio, marketing, samples, entry into photographic contests, art exhibitions, editorial use, or for display in and outside of Photographer’s studio.
Photographer assumes no liability and is released from any color dyes and/or inks in Client’s media that may fade or discolor over time.
This Agreement shall be construed in accordance with the laws of (ENTER STATE HERE) of the United States of America. Client consents to the jurisdiction of the courts of (ENTER LOCAL COURTS HERE).
All notices, demands, payments, and statements shall be sent to the Photographer at the following address (FILL IN ADDRESS HERE) and to the Client at (FILL IN ADDRESS HERE).
Modifications in Writing.
This Agreement constitutes the entire Agreement between the parties hereto and shall not be modified, amended, or changed except by a written Agreement signed by both parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first set forth above.
Usually a contract or an agreement will contain terms that some clients might find hard to read and/or understand. Your contract should contain what is called a form of defined terms to maintain consistency throughout the contract, and allow the drafter (you?) to use shorter defined terms instead of the longer definitions. Defined terms are usually typed with “Initial Capital Letters” to help distinguish terms from words that are not defined. As you read through some of the T&Cs above you might of noticed me capitalizing a few random words in the middle of sentences. That is because I was setting those words up to be defined later on below. I have read that a lot of times you will see the defined terms within the body of the contract and sometimes at the end of a contract. For me I like to keep it simple and put all the terms on a blank paper for referencing.
- Agreement – Oral or written exchange of promises.
- Assignment – An undertaking that an individual has been assigned to.
- Client – Someone who pays for goods or services.
- Copyright – United States governed law legally enforcing creative and artistic work(s) for the creator of the original work(s) who have exclusive rights for a certain time period in relation to the work and publication of the work.
- Exclusive Rights – Permits other parties from having any rights to perform the same action with the work or to acquire any benefit from the work.
- Force Majeure – A natural and unavoidable catastrophe that interrupts the expected course of events.
- Nonexclusive Rights – Leaves the rights to the creator permitting him/her to gain profit from their work by other means.
- Photographer – A professional person who takes pictures with a camera and intends to make a living off of his/her work.
- Retainer – A fee charged in advance to retain the services of someone.
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